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Banking on an Adverse Inference – NY Appellate Division Affirms Spoliation Sanctions against Bank in Employment Discrimination Suit

February 14, 2011 Leave a comment

by Christopher D. Dize

Spoliation is the intentional destruction or alteration of evidence.  If proved, a court may allow the jury to infer that the lost evidence was unfavorable to the party responsible.  This type of a sanction can be devastating.

In 2002, bank employee Jacob Ahroner was not happy with his employer, Israel Discount Bank of New York.  Consequently, in July 2003, he brought suit, alleging hostile work environment and discrimination based on race, age, and national origin.

In November 2002, seven months prior to filing the action, however, Ahroner’s attorney wrote to the Bank.  The letter placed the Bank on notice that

“[it] must undertake all efforts to preserve from spoliation all documents and other records relating to our client’s employment, as well as any unlawful conduct of [the Bank] or its employees.  As you may be aware, spoliation gives rise to an inference and instruction that the missing documents would have proved the charging party’s case.”

The Bank replied that it was aware of its obligations.

Notwithstanding this awareness – and notwithstanding a 2004 order from the trial court to produce emails relating to Ahroner’s discharge – emails, backup tapes, and the hard drive of the computer of Ahroner’s direct supervisor were at some point destroyed.  The hard drive allegedly had information relating to the Bank’s decision to terminate Ahroner’s employment.

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9th Circuit to Law Firms: Turn Over to Grand Jury Discovery Documents of Foreign LCD Makers Obtained During Civil Discovery in Related Antitrust Class Action

February 6, 2011 Leave a comment

by Christopher Dize

For foreign companies doing business in the United States, avoiding getting sued may be hard enough without having to worry about whether you’re being investigated by a grand jury and the U.S. Department of Justice.

However, life can be really difficult for foreign companies that are not only getting sued, but also have to turn over their civil litigation documents for investigations of possible criminal conduct.

Under a recent 9th Circuit ruling, this is exactly the kind of misfortune that has befallen several foreign LCD manufacturers. The foreign companies, including LG Display, Sharp, and Chunghwa Picture Tubes, are embroiled in an antitrust class action suit and are simultaneously being investigated for antitrust criminal behavior.

Even though it couldn’t find any precedent to support its decision, the court ruled that if the documents were in the country then they were within the “grasp” of the grand jury.

The 9th Circuit’s ruling comes as a big victory for the DOJ.  It gives prosecutors expanded power to subpoena foreign documents that have entered the country for civil litigation purposes.

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More on Judicial Internships

February 4, 2011 Leave a comment

By Christopher Dize

Yesterday, Danny posted on the benefits of interning for a judge.  I have also had very good experiences with interning, and I want to highlight a couple of things in addition to what he said.

First, if you do any writing for the judge or the law clerks and you decide that you want to use it as a writing sample later on, make sure you ask the judge for permission before you use your work product as a writing sample.

Of course, you probably won’t have to ask the judge personally, unless you’re fortunate enough to be working directly for him or her, but you should at least run it by a law clerk.  If there is no problem with you using the work product (and rarely there is, because they’re not likely to give the really hot stuff to an intern anyway), you will probably have to redact names and dates and any other personal information of the parties, such as social security numbers.

The reason for making sure you have permission is not that you might screw up and accidentally show a memo to a prospective employer who happened to be representing one of the parties mentioned in the memo . . . or even worse, what you wrote in the memo was adverse to the prospective employer’s position in the litigation.  How ridiculous would that be!  Yeah, probably too crazy to happen . . . but you never know.

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Benefits Of Judicial Internships

February 2, 2011 3 comments

By Daniel E. Bonilla

Regardless of whether you’re interested in clerking for a judge one day, becoming a litigator, or a transactional attorney, you should consider interning or externing (an externship is basically an internship but for school credits) for a judge before you graduate law school.  One semester or summer with a judge will expose you to many different aspects of the law that law school simply can’t teach you.  It will be a tremendous learning experience that you’ll be able to build upon going forward.

So, how do you get a judicial internship? First, it’s just like applying for any other job.  You could talk to your school’s Career Services Office to get information on which judges are looking for interns or you can even ask for a list of all the judges in certain areas.  If not, you can simply use the Internet to find different judges and then mail your materials directly to them.

Be sure to talk to other students or the Career Services Office to find out what materials you should send to the judge that you’re interested in interning for.  Usually, the initial submission will include your resume and a cover letter.  If you get an interview, you should bring a writing sample and your transcripts just in case the judge or the law clerk needs it.  But, it might be different for the judge you have in mind so check with others first.

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Tasering the Fourth Amendment: What’s Everyone Complaining About . . . It’s Not Like You Got Shot?

January 27, 2011 1 comment

by Christopher Dize

By now, everyone is probably familiar with the device. It’s small, sort of squarish, sci-fi-looking, make a clicking sound when discharged . . . .

Remember the kid who cried, “Don’t tase me, bro!” at a John Kerry speech a few years ago . . . there was some clicking and then a lot of “Aaaggghhhhh!!!!”

In the United States, Tasers continue to grow in popularity with law enforcement.  As police tools, they are revered by officers for their ability to subdue suspects without causing injury.  Not just because it’s fun to zap bad guys and mouthy hecklers.

It is increasingly questionable, however, whether Tasers actually increase our safety without zapping too many of our Constitutional rights in the process.

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How To Read Cases In Law School

January 21, 2011 1 comment

Each case or written opinion is comprised of different sections and components.

A well-written opinion usually begins by outlining the legal issue(s) followed by the background facts pertaining to the situation in controversy.  After these two sections comes the procedural posture of the case, which simply means the case’s history with regards to how the courts have ruled on the matter.  Then, the court delves into the “discussion” or legal analysis of the issues.  Last, there is a brief conclusion followed by the court’s ultimate ruling.

Well-written opinions will have headings for each different section.  Unfortunately, however, some cases are not structured as neatly and require the reader to delineate each section on his/her own.  Initially, this may not be as simple as it sounds but over time it becomes second nature.

Eventually, the reader will recognize where one section ends and the next begins.  For example, legal issue sentences usually begin with the word “whether.”  Thus, when the word “whether” appears, you should ask yourself if it is framing the legal issue for the opinion.  If so, you should mark it.  You should also realize that once the legal issue has been stated, a different section should follow.  Continue this practice until you have reached the end of the opinion.

Sections (usually in this order):

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5 Law School Tips For Entering Students

January 16, 2011 Leave a comment

If you’re thinking about going to law school and you’re looking for some tips on ways to improve your chances of doing well, consider the 5 tips below.  These are tips I’ve put together from my personal experiences in law school and the experiences of some of my law school peers.

Just because these tips have worked for us doesn’t necessarily mean they’ll work for you.  Nonetheless, these are still pretty straightforward tips that will never hurt!  Ultimately, you’ll decide what works best for you.  Until then, consider the following.

1) Read The Assignments!

I know, it sounds really obvious, but it can’t be stressed enough.  Read the assignments in their entirety!

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